By Wiltshire & Grannis

On January 15, 2013, the U.S. Federal Communications Commission (“FCC”) released a Second Report and Order (“Second R&O”) in its long-running rulemaking in IB Docket No. 04-112 to revise and reform its reporting requirements for international telecommunications providers. Although presented as a reform to “avoid unnecessary or expensive burdens on telecommunications providers” as part of the FCC’s broader Data Innovation Initiative, the Second R&O in fact extends new requirements to all undersea cable operators, by requiring them to report actual and planned capacity, and to all common-carrier customers of such operators, by requiring them to report facility-specific capacity purchases.

Capacity Reporting for Cable Landing Licensees. Under the Second R&O’s requirements (consolidated in a new rule codified at 47 C.F.R. § 43.62), cable landing licensees for undersea cables connecting the United States to foreign points (“U.S.-international undersea cable systems”) must file a Circuit Status Report by March 31 of each year, which will require the licensee to:

  • Report the available capacity (in Gbps) of each licensed U.S.-international undersea cable system as of December 31 of the previous year;
  • Report the planned capacity of each licensed U.S.-international undersea cable (in Gbps);
  • Report (in STMs) capacity owned by the cable landing licensee on the licensed U.S.-international undersea cable system; and
  • Report (in STMs) activated and non-activated (i.e., idle) capacity.

Purely domestic systems within or between Alaska, Hawaii, the contiguous 48 states, and U.S. territories are excluded from these requirements.

Capacity Reporting for Purchasers of IRU and Lease Capacity. As part of the Circuit Status Report, common-carrier customers of U.S.-international undersea cable systems (i.e., customers holding an international Section 214 authorization from the FCC) must also:

  • Report (in STMs) for each U.S.-international undersea cable system capacity purchased on an indefeasible right-of-use (“IRU”) basis;
  • Report (in STMs) for each U.S.-international undersea cable system capacity purchased on a leasehold basis; and
  • Report (in STMs) activated (meaning in-use or available for immediate use) and nonactivated capacity.

Common carriers holding international Section 214 authorizations must also still comply with the annual Traffic and Revenue Report, which the Second R&O modifies and recodifies in 47 C.F.R. § 43.62. In the Second R&O, the FCC extended to providers of international interconnected VoIP services the requirement to file annual Traffic and Revenue Reports.

Registration Requirement. The Second R&O requires any holder of a cable landing license for a U.S.-international undersea cable system and any holder of an international Section 214 authorization to file a registration form with the FCC, clearly identifying: the filing entity; FCC registration number; 499 Filer ID for the federal Universal Service Fund; associated cable landing licenses and/or international Section 214 authorizations (and changes as compared with the prior year’s filing); and contact information (whether a company employee or outside legal counsel).

Procedures for Requesting Confidential Treatment. The capacity data requested by the FCC—particularly as it pertains to customers of particular systems—clearly raises concerns about the confidentiality of such data. To address these concerns, the FCC will permit a filing entity to seek confidential treatment for the information contained in its Circuit Status Report and/or Traffic and Revenue Report simply by checking a box on the registration form.

Effective Date. The new reporting requirements adopted by the FCC in the Second R&O will take effect once the FCC’s reporting requirements have been approved by the White House Office of Management and Budget and the FCC has published a notice in the Federal Register specifying an effective date and confirming the successful modification of the International Bureau Filing System to accommodate the new reports.

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For more information regarding compliance with these new reporting requirements or regarding Wiltshire & Grannis’s international telecommunications and undersea cable practices, please contact Kent Bressie at +1 202 730 1337 or [email protected].

W&G does not intend this advisory to convey legal advice. We circulate it as a convenience and do not intend it to reflect or create an attorney-client relationship as to its subject matter.